El Dorado Club

National Labor Relations Board - Board Decisions

Sep 29, 1975

220 N.L.R.B. 886 (N.L.R.B. 1975)

886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Anthony Company, d/b/a El Dorado Club and
Melvin S. Hogg and Richard J. Flynn. Cases
31-CA-4637 and 31-CA-4659
September 29, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS , AND PENELLO
On March 17, 1975, Administrative Law Judge E.
Don Wilson issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision' in light of the exceptions and brief
and has decided to affirm the rulings,2 findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
We agree with the Administrative Law Judge that
it will effectuate the policies of the Act to assert juris-
diction over the Employer's gaming establishment.
The Employer operates an establishment where food
is served in the restaurant section and the game of
poker is played in the casino .3 The restaurant is in a
room adjoining the casino; a patron passes from one
room to the other by walking through the opening of
the adjoining wall. Respondent earns income in the
casino by "renting" seats to card players in three sec-
1 We hereby correct the following inadvertent errors which in no way
affect the results of the Decision : ( 1)The written warning referred to in sec.
Ifl,B,l,par. 5, occurred on March 15, not March 16. (2) The last part of the
alternative stated in sec . III,B,2, par . 12, should not include the word "not,"
but should read ". . . or Hogg did violate a club rule by smoking while he
was on the floor." (3) In the last par. of sec. III,B,2, the Administrative Law
Judge refers to the working schedule whereby Hogg worked 4 straight hours
then had 2 hours of breaks during the following 4 hours. It appears , howev-
er, that Hogg had 1-1/2 hours of breaks during the first 4 hours , but worked
the last 4 hours straight . (4) Although the Administrative Law Judge, in In.
59, finds that there was no credible evidence that Hogg stated that he "can
steal as much on nights as . . on days," we interpret this finding to mean
that the Administrative Law Judge found no witness , at the hearing, credi-
bly testified that this statement was made . Although the findings of the
arbitrator were accepted into evidence , we do not consider the finding of the
Administrative Law Judge made with respect to Hogg to be a refusal to
credit the finding made by the arbitrator . In any case, we accept the
arbitrator 's finding.
2 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91
NLRB 544 (1950 ), enfd . 188 F.2d 362 (CA. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings or for
finding bias
Both the restaurant and the casino have service centers . Accordingly,
soft drinks served in the cardroom come from the service center in that area
and not from the restaurant.
tions. The rates for renting a chair in the section
vary, with the rates in section 3 being the lowest. In
section 1, games are usually played for the highest
stakes. Although Respondent does not advertise its
gambling facilities, it has advertised the restaurant
part of its operation. The number of employees at
Respondent's establishment, both in the restaurant
and in the casino, varies from 190 to 205 of which
between 60 and 70 employees work in the restaurant
only. The cardroom has a seating capacity of approx-
imately 280 people; the restaurant seats approxi-
mately 160. The gross dollar volume of the combined
operation is approximately $3 million. In Thunder-
bird Hotel, Inc., and Joe Wells, James Schuyler and
William Deer, Co-Partners, d/b/a Thunderbird Hotel
Company, 144 NLRB 84 (1963), the Board rejected
the argument that it should not assert jurisdiction
because the employees worked in a gambling casino,
and held that the casino was an integral part of that
Employer's total operation and that that Employer's
business as a hotel, bar, and restaurant met the
Board's jurisdictional standards. It is clear that the
casino and restaurant herein are closely integrated.
Contrary to Respondent's assertion that it operates a
restaurant as merely incidental to the basic nature of
Respondent's operation of its poker parlor or gam-
bling establishment, it is clear that a very substantial
part of the Employer's business is concerned with the
restaurant operations.
In any event, the Board has previously asserted
jurisdiction over casinos 4 In El Dorado Inc., d/b/a El
Dorado Club, 151 NLRB 579 (1965), the Board as-
serted jurisdiction notwithstanding the assertion that
it should not due to the extensive state regulation of
gambling in Nevada or due to the unique nature of
the gambling industry. Therein, we held that a labor
dispute in an industry which directly employs a large
number of employees in the dominant industry in the
State and is dependent upon substantial and closely
related interstate activity could disrupt commerce
substantially. It is clear from the record that Respon-
dent, with its gross revenue of $3 million, is part of a
very substantial industry. Although a large majority
of Respondent's customers appear to come from
within the State, Respondent annually purchases ap-
proximately $50,000 worth of playing cards, which
are made in Pennsylvania. Respondent's meat bill
alone is approximately $125,000 a year. Clearly,
Respondent's business is of such a nature and sub-
stantial size to warrant the Board to exercise jurisdic-
tion in this area.'
4 See, e .g., Harrah 's Club, 143 NLRB 1356 (1963).
3 Although Respondent asserts that the Board should refuse to assert ju-
nsdiction under the same rationale by which we decline to assert jurisdic-
tion over the horse racing industry , we find more analogous the operation of
casinos wherein we asserted jurisdiction, explicitly refusing to apply the
220 NLRB No. 152
EL DORADO CLUB 887
This case involves a number of actions taken by
Respondent against employees Flynn and Hogg after
they attended an arbitration hearing, concerning the
discharge of Hogg , which resulted in Hogg's rein-
statement . Respondent contends that the instant dis-
pute must be referred to arbitration since Respon-
dent and the Union, Culinary Workers and
Bartenders Union, Local No. 814 (AFL-CIO), which
represents the Charging Parties, are parties to a col-
lective-bargaining agreement which sets forth a
grievance procedure culminating in binding arbitra-
tion. We disagree. In Joseph T. Ryerson & Sons, Inc.,
199 NLRB 461 (1972) (Members Fanning and Jen-
kins dissenting on other grounds), the Board refused
to defer to arbitration an allegation that respondent
threatened a reprisal against an employee for his par-
ticipation in the grievance procedure. The Board,
therein , held that "the violation with which this Re-
spondent is charged , if committed, strikes at the
foundation of that grievance and arbitration mecha-
nism upon which we have relied in the formulation
of our Collyer doctrine." Similarly, the complaint
herein alleges that Flynn and Hogg were discriminat-
ed against due to their participation in the grievance
and arbitration process, a violation, which, if com-
mitted, clearly and directly attacks the "heart" of the
arbitration and grievance process. Nevertheless, Re-
spondent now argues that the Board must defer to
that same process which gave rise to the instant dis-
pute. We will not require the Charging Parties to per-
form such a useless and potentially harmful act. Lex
neminem cogit ad vana seu inutilia peragenda-the law
compels no one to do vain or useless things. Accord-
ingly, we address the merits of the statutory viola-
tions alleged 6
On March 15, Respondent issued a written warn-
ing to Flynn for not giving 4 hours' prior notice on
March 13 that he would be absent. When Flynn
called on March 13 at 9 a.m. (approximately 2 hours
before he was scheduled to begin work), he informed
one of Respondent' s managers , Hackman, that he
was going to a court session (the arbitration hearing)
and did not know how long he would be gone, but
that he would call as soon as possible and if it should
take longer he would call back. At that time, Hack-
man did not inform Flynn that he had failed to call
in 4 hours before the starting time but merely said
"fine ." Flynn later spoke to Hackman, about 10 a.m.,
and stated that he would be at the hearing all day.
During neither of these conversations did Hackman
express displeasure with Flynn for failing to call in
less than 4 hours before he was scheduled to begin
work. We also note that De Champlain, a slip girl for
Respondent, attended the second day of the hearing
and did not call in 4 hours before she was expected
to report. Although Flynn called in for De Cham-
plain, giving Respondent only 1 hour's notice that
De Champlain would not be at work, De Champlain
received no warning.
Sometime after the second day of the arbitration
hearing, Flynn was told that he could no longer re-
lieve in sections 1 and 2. This constituted a real de-
privation to Flynn since he no longer was in a posi-
tion to receive tips for breaking cards in those
sections where cards were more frequently replaced
and, consequently, tips were more frequent. In expla-
nation, Hackman testified that because Flynn was a
"good" floorman, Hackman believed that he was
better suited to handle section 3 only. Thus, it seems
that Flynn's "reward" for his competency was to be
limited to the section where tips were least frequent.
On April 5, 1974, as Flynn was preparing to punch
out and go home, he was called to the card desk
where the desk girl informed him that all his collec-
tions were not in and that the collection slip of the
"new girl" was missing. Flynn then rectified the situ-
ation. Flynn previously had turned in collection slips
late but had never been chastised for his action. On
April 5, 1974, the date that Flynn turned in the col-
lection slip late, his actions were not criticized. He
did not work on April 6, and on April 7 nothing was
said about his failure to have the collection slip on
time. On April 8, Hackman told Flynn not to work
the next day, which was a "float" day .7 Flynn told
Hackman that he was not scheduled to take Tuesday
as a float day and that another floorman, Swank,
never had even one float day. Flynn stated that he
would take his float day only after Swank had his or
Flynn would go to the Union. Hackman replied that
Flynn could work the next day, but later called
Flynn into his office where Flynn was given a written
warning and a written 3-day suspension without pay
for failing to turn in his collection on time on April 5.
We note that Flynn testified that he had previously
turned in collection slips late but had never been dis-
ciplined in any manner-for this action. We also note
that. Hackman testified that the only employee he
had ever suspended without pay for 3 days was
Flynn. De Champlain testified that she had turned in
collection slips late, had seen other employees fail to
turn in collections, and knew that floormen had
failed to turn in slips in a timely fashion, but she
knew of no instance where anyone had received a
analogy of the horse racing industry (see El Dorado Club, supra). r Tuesday is Respondent's busiest day and, accordingly, is also the best
6 Members Fanning and Jenkins agree with the reasons stated in the text day in tips for all employees Accordingly , the floormen alternate in taking
for not deferring this case to arbitration, but they also adhere to their dis - Tuesday off. The rotation is set up so that Flynn was obligated to take off
sent in Ryerson . only every fourth Tuesday.
n DECISIONS OF NATIONAL LABOR RELATIONS BOARD
warning slip even if they went home with the money
and brought it in the next day. Brimmer , a former
manager and floorman with Respondent , also testi-
fied that there were many times when employees
took their collections home , but no one had ever
been suspended , to Brimmer's knowledge . Addition-
ally, it appears that no action was taken against the
chip girl who failed to turn in her slip to Flynn until
Flynn asked Hackman why the chip girl had not
even received a warning for her failure . Accordingly,
it appears to us that Flynn was severely punished for
this fairly routine mistake.
On July 28, Flynn was allegedly discharged be-
cause of his tardiness and his insubordination. We
accept the finding of the Administrative Law Judge
that Flynn did not tear up the warning notice nor did
he address obscene language to John Anthony, son
of Anthony the owner . Moreover , Flynn had previ-
ously informed Anthony that he doubted that he
would be able to come to work on July 28 due to
pain and problems he was experiencing in connec-
tion with recent dental surgery.
We find, in accordance with the Administrative
Law Judge , that Respondent violated Section 8(a)(3)
and (1) of the Act by the above conduct. Respondent
issued warnings to Flynn but did not warn other em-
ployees for identical "misconduct" and had not is-
sued warnings , oral or written , for such misconduct
in the past . Moreover, Respondent lacked a reason-
able or credible explanation for taking action which
inured to Flynn 's detriment (e.g., his removal as a
relief man in sections 1 and 2 ). Especially important
are the credibility findings of the Administrative Law
Judge that several statements were made by Respon-
dent clearly indicating that Respondent was dis-
pleased with the presence of Flynn at the arbitration
hearing . Anthony , one of the owners of Respondent,
told Flynn that , when he was seen at the arbitration
hearing, Respondent realized that Flynn "wasn't on
their ball team." When Flynn protested that he was
being discriminated against simply because of his ap-
pearance at the hearing , Anthony told Flynn that he
would have to take the discipline "like a man." Addi-
tionally, Brimmer acknowledged that he had told
Flynn that he had been singled out because he went
to the arbitration hearing. The above statements help
cast light upon what might otherwise be somewhat
ambiguous action on behalf of Respondent. We ac-
cept such credibility resolutions and find , herein, that
such statements made by Anthony constitute re-
straint and coercion of Flynn in his exercise of rights
guaranteed by Section 7 of the Act , thereby violating
Section 8(a)(1) of the Act . Accordingly, we consider
the warnings , suspension , and discharge effected
upon Flynn to be instigated by his participation in
the arbitration and grievance procedure , and find
that the reasons cited to Flynn were pretextual for
the purpose of cloaking Respondent 's true motives.
We find , however, that Respondent did not violate
Section 8(a)(1) of the Act by moving the "3-6 Blind"
game from section 3 where Flynn was floorman to
another section . As found by the Administrative Law
Judge, the game moved from one station to another
over a period of years . At least one customer com-
plained that the table was too noisy in section 3. It is
clear from the testimony that section 3 is a noisier
area than the other sections . Moreover , section 3 is
the least prestigious section and the players in section
1 (the most prestigious and most expensive section)
indicated that they would rather play the game at
their table. Although the game is now played , again,
in section 3, this move appears to be made for legiti-
mate reasons and serves only as evidence that the
game is frequently moved from section to section.
Accordingly , we do not find that the Respondent
violated Section 8(a)(3) or 8 (a)(1) by moving the
game out of Flynn's section.8
The complaint also alleges , and the Administrative
Law Judge found , that Respondent discriminated
against employee Hogg for engaging in the protected
concerted activity of participating in the grievance
procedure . On August 5, the first day of his return to
work after the arbitration , Hogg was given a written
warning notice for smoking a cigarette while on the
floor. Although Anthony had informed Hackman
that Hogg was smoking and Hackman saw Hogg
with a cigarette in his hand , Hogg denied that he had
been smoking . Other employees , including De
Champlain, also denied that Hogg had been smoking
but confirmed his story that he had picked a lit ciga-
rette off the floor and was looking for an ashtray.
Respondent changed its hours on or about August
25 so that all the shifts moved up an hour. As a re-
sult, customers were entitled to new cards and, in
fact , requested them approximately 4 hours after
Hogg began work which was during his breaktime.
Since a floorman frequently receives tips for each
new deck or "cardbreak," this resulted in a substan-
tial financial loss to Hogg . Hackman admitted that
as many as 3 and 4 decks might be broken within the
space of 5 minutes just after Hogg left on his break
and that 8 to 10 decks might be introduced during
one 8-hour period but all of these decks might be
"put down" while Hogg was on his break.
We agree with the Administrative Law Judge that
Respondent violated the Act by the above conduct
with respect to Hogg . Although Hackman asserted
6 We also do not find that Respondent violated Sec. 8(a)(l) and (3) of the
Act by barring Flynn from the premises until the matter of his discharge
was resolved since , inter ala, this violation was neither alleged nor litigated.
EL DORADO CLUB
that he tried to deal equally and fairly with his em-
ployees and was concerned with their welfare, it is
apparent that Hogg arbitrarily was discriminated
against by Respondent subsequent to the 'arbitration
proceeding . In finding the above conduct to be a vio-
lation , we are particularly aware of Respondent's
hostility toward the arbitration process as evidenced
by the statements made by Anthony and Brimmer.
Notwithstanding Hogg's reasonable explanation for
the lit cigarette as supported by witnesses to the inci-
dent, Hackman issued a written warning notice to
Hogg. The warning for smoking appears to be a pre-
text by which Respondent sought to punish Hogg for
his participation in the arbitration proceeding. Al-
though we do not find,,nor is any allegation made,
that Respondent changed its hours for discriminato-
ry reasons, it is clear that the change in hours sub-
stantially affected Hogg's working conditions by
drastically reducing his income from tips . We are un-
willing to find that Respondent had other than dis-
criminatory purposes in mind when it failed to make
adjustments to permit Hogg to receive a reasonable
amount of "card breaks ." It would have been a sim-
ple matter for Respondent to adjust Hogg's hours so
as to slightly delay his breaks, thereby enabling him
to occasionally supply new cards upon the request of
the customers . The above situation where "card
breaks" took place immediately after Hogg began his
workbreak is clearly inequitable and does not reflect
the actions of an Employer who "tried to deal equal-
ly and fairly with all his employees." Accordingly, we
find that Respondent violated Section 8(a)(1) and (3)
of the Act by maintaining Hogg's schedule in such a
manner.
However, we do not find that Respondent violated
that Act by originally agreeing to take Hogg back
but confining him to a desk job or by restricting
Hogg so that he was not allowed on the premises
until 15 minutes before beginning work and by re-
quiring him to leave immediately after work. These
limitations may not have been attributable to Hogg's
participation in the grievance, but may have been
motivated by Respondent's fear that Hogg was en-
gaged in illegal activity. Although we agree with the
Administrative Law Judge that some of the evidence
regarding Hogg's allegedly illegal activity must carry
no weight, we believe that Anthony's testimony that
he had been contacted several times by the police
who told him that Hogg was under surveillance is
sufficient to present a bona fide reason for the limita-
tion placed upon Hogg. Accordingly, we find that
the General Counsel had not met its burden in prov-
ing that Respondent violated Section 8(a)(1) and (3)
by the above limitations?
ORDER
889
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that the Respondent, The
Anthony Company, d/b/a El Dorado Club, Garde-
na, California, its officers, agents, successors, and as-
signs, shall take the action set forth in the said rec-
ommended Order, as modified herein:
1. Substitute the following for paragraph 2(c):
"(c) Reinstate Richard J. Flynn to his former posi-
tion or, if it no longer exists, to a substantially equiv-
alent position, without prejudice to his seniority or
other rights and privileges."
2. Substitute the following for paragraph 2(e):
"(e) Notify the Regional Director for Region 31,
in writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with."
3. Substitute the attached notice for that of the
Administrative Law Judge.
9 By limiting Hogg to a "desk job," requiring no work , Respondent may
well have been violating the order of the arbitrator Perhaps this assignment
(which clearly constitutes a change in Hogg's working conditions) is attrib-
utable to the same factors which led Respondent to discharge Hogg in the
first place . In any event , we need not arrive at a judgment as to why Hogg
was so assigned . It is enough for the purposes of this decision that we find
that the evidence is insufficient to demonstrate that the reassignment was
due to Hogg 's participation in the grievance.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT, in any way or manner or form,
discriminate against any of our employees be-
cause of their support for or assistance to Culi-
nary Workers and Bartenders Union, Local No.
814 (AFL-CIO), or any other labor organiza-
tion, or because they engage in any union activi-
ties or any other activities protected by the Na-
tional Labor Relations Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce any of our employees in
their rights to join, assist, or support the above-
named Union or any other labor organization or
engage in any other activity protected by the
Act, including the right to file grievances and
participate in grievance or arbitration activities,
as provided for by the contract between the
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above-named Union and our Company, or to
refrain from so doing.
WE WILL make Richard J. Flynn and Melvin
S. Hogg whole for any loss of earnings they may
have suffered because of our unlawful discrimi-
nation against them.
WE WILL reinstate Flynn to his former posi-
tion or, if it no longer exists, to a substantially
equivalent position , with all his prior existing
rights and privileges , including seniority.
THE ANTHONY COMPANY, d/b/a EL
DORADO CLUB
DECISION
STATEMENT OF THE CASE
E. DON WILSON, Administrative Law Judge: Based upon
a charge in Case 31-CA-4637 filed by Melvin S. Hogg, an
individual, herein Hogg, on August 2, 1974; and in Case
31-CA-4659, filed by Richard J. Flynn, an individual,
herein Flynn, on August 13, 1974, the Regional Director
for Region 31 of the National Labor Relations Board,
herein the Board, issued an order consolidating cases, con-
solidated complaint and notice of hearing on October 22,
1974. It was therein alleged that The Anthony Company,
d/b/a El Dorado Club, herein Respondent, committed
various violations of the National Labor Relations Act,
herein the Act. Respondent timely denied that it had vio-
lated the Act in any manner and it further claimed that the
Board should not exercise jurisdiction over it because of
the nature of its business, and it further claimed that viola-
tions, if any in this case, should be resolved by arbitration
as provided for in the grievance and arbitration provisions
existing in the contract between it and the Union I herein.
Pursuant to due notice, a hearing in this matter was
heard before me in Los Angeles, California, on December
10, 11, 12, and 13, 1974. The parties fully participated.
General Counsel and Respondent have filed excellent
briefs which have been fully considered by me.
Upon the entire record in this case,2 and from my obser-
vation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BOARD'S JURISDICTION AND RESPONDENT'S BUSINESS
There is a sharp conflict between the parties as to wheth-
er the Board has jurisdiction in this case or whether it
would effectuate the purposes of the Act for the Board to
assert jurisdiction over Respondent.
Poker parlors in California are places where people play
poker and similar games for money. In the State of Califor-
nia, they are not universally allowed. Rather, in California
there is "Local Option," that is, it is up to a particular town
I Hereinafter to be named and described.
2 Unopposed motion of General Counsel to correct transcript is granted
or city or village , etc., to permit the operation of poker
parlors. According to the credited testimony of George An-
thony, there are about 300 poker parlors in the State of
California, some have only one "employee" who may or
may not be the owner, and others having large numbers of
employees such as the Respondent, in the instant case, who
employs approximately 200 employees in his combined res-
taurant and card parlor operation. In the city of Gardena,
where Respondent is located, there are approximately six
card parlors substantially similar in nature . They are locat-
ed within a 10-block area. There is no question that a card
parlor in Gardena is subject to the most strict control and
regulation by the City Council of Gardena. I find it unnec-
essary to spell out in detail the many ways in which the
City Council controls the card parlors and their employees.
Gardena is located within the County of Los Angeles.
The card parlors there and their operations are subject to
regular police control by the Los Angeles County police
and the Gardena police. I note, later on this Decision, that
Respondent received approximately $3 millon in gross rev-
enue in the past year in its business operations. I have no
idea what is the gross revenue of a one-man operation,
whether operated by the owner himself or by an employee.
I have no idea how many localities in California have exer-
cised their right to Local Option, so far as card parlors are
concerned. I have no idea how other card parlors earn
money out of the operation of card parlors. Whether there
are card parlors larger than Respondent I do not know. I
have lived in California more than 20 years, about 10 of
which were spent in Los Angeles and I have been familiar
with Gardena for much of that time and since. In the city
where I now live, there are, I believe, about two " small"
poker parlors. Eliminating Gardena, where I believe each
poker parlor is subject to the same control by the City
Council, the Los Angeles police and Gardena police, I do
not know what, if any, control is exercised over the other
card parlors throughout the State of California by any gov-
ernmental body.
Speaking of Respondent, and probably the rest of the
California card parlors in Gardena, the income of Respon-
dent is not derived from the amount of money played in a
game or the size of the stakes in a game . Respondent
makes its money, eliminating the restaurant entirely, from
"renting" seats to card players. It has three sections for the
playing of poker and similar games , and they are known as
sections 1, 2, and 3. In section 1, games are usually played
for higher stakes and I believe that the charge for renting a
chair at a table in section 1 is $8 per half hour. The rates
for renting a chair at the other sections vary, the rates in
section 3 being the lowest. It should be noted that the City
of Gardena gets a certain percentage of the rentals so paid
for chairs and has rights to audit books of the card parlors,
etc. Respondent does not advertise its gambling facilities
nor its card playing facilities, although, of course, it has
signs annexed to its building. Any advertising it has had
out of state is minimal and unusual. It maintains a credit
file containing the names of approximately 5,000 persons.
Probably none, or very few, of these persons reside outside
California. Of the approximately 1,000 different persons
who use Respondent's facilities each week, approximately
75% of the regular patrons reside in Los Angeles county.
EL DORADO CLUB
The remaining 250 patrons are simply not regular patrons.
There is no substantial evidence that any substantial num-
ber of Respondent's patrons are not residents of Califor-
nia.3
Respondent insists that it is not subject to the jurisdic-
tion of the Board because its business is substantially the
same as the horse racing industry , where the Board does
not exercise jurisdiction over race tracks . As of this time, it
is my recollection of the transcript , that George Anthony,
the man who controls the operations of Respondent, pre-
fers to have poker playing considered as a "game of skill"
rather than "gambling."
Employment by Respondent of more than 200 people,
with a total gross income in excess of $3 million , makes it a
substantial business enterprise . I am not concerned with
whether anybody from outside the State of California plays
poker either as a game of skill or as gambling, at
Respondent's club . I am not concerned either , with how
much control the city of "Gardena" chooses to exercise
over the poker parlors or its employees.4
Respondent relies on the Code of Federal Regulations,
Title 29, Labor, Chapter 1, National Labor Relations
Board, Part 103 (1973). I must find that the operation of a
poker parlor in Gardena is "local " in character . Of course,
such also would be true of a very large independently
owned supermarket or department store or factory, etc., in
Gardena or elsewhere . While the Board in the above re-
ferred to Regulations devoted much consideration to the
"extensive State control over the industries ," I find the
control over a card parlor by the Gardena City Council to
be something entirely different , no matter how extensive it
may be.5
Respondent strongly emphasizes that the Board specifi-
cally refused to assert jurisdiction over race tracks because
"exercise of jurisdiction would not substantially contribute
to stability in labor relations ." How true! How true!
It is noted by me that Respondent is a party to at least
one collective-bargaining agreement . Respondent asserts it
would be unsound policy for the Board to assert jurisdic-
tion for the first time over this card parlor or over card
parlors in general. Respondent insists that the card clubs in
Gardena are sufficiently similar to race tracks to warrant
that the Board decline to assert jurisdiction over them.
What is specifically ignored by Respondent in discussing
the problem of the Board 's exercise of jurisdiction with
respect to Respondent is what the Board had to say in its
regulation or statement, with respect to regulation by the
Board of labor relations at race tracks.
It should be noted that Respondent states in its brief, at
page 13, that the so-called "gaming industry," by which I
take it he refers to card parlors , is extremely limited where
it exists and consists primarily of one- to two -employee
operations . I note particularly that neither Gardena nor
any other official body appears to attempt to control labor
relations between card parlors and their employees, if any,
such as that of Respondent and its employees.
Respondent's counsel specifically ignores one of the
3 Thus Respondent is most unlike a Las Vegas casino.
4 It's a lot.
! Gardena has approximately 46,000 residents.
891
most important facets of the Board's regulation, which fol-
lows:
In addition, the sporadic nature of the employment
in these industries encourages a high percentage of
temporary part-time workers and results in a high
turnover of employees and a relatively unstable work
force. This is further evidenced by a pattern of short
workhours and sporadic and short periods of active
employment with any given employer.
Besides minimizing the impact on commerce of the
industries this pattern of short-term employment also
gives us pause with respect to the effectiveness of any
proposed exercise of our jurisdiction in view of the
serious administrative problems which would be posed
both by attempts to conduct elections and to make
effective any remedies for alleged violations of the act
within the highly compressed timespan of active em-
ployment which is characteristic of the industries.
In this case, employment at Respondent' s has not been
established as being "sporadic" in nature . There is a lack of
substantive or probative evidence that there is a high per-
centage of temporary part-time workers and there is a simi-
lar lack of evidence that there is a high turnover of employ-
ees and a relatively unstable work force. This transcript
makes it clear to me that the employees, particularly in the
Casino, with which we are primarily concerned, are fre-
quently employees with long periods of seniority and I find
from the transcript that there are few, if any, part-time
employees and it further appears from the transcript that
there is very little turnover of employees. I find from the
record, when considered as a whole, that there is a rela-
tively stable work force at Respondent. Unlike the situa-
tion with respect to race tracks, there is not here a pattern
of short work hours and sporadic and short periods of ac-
tive employment with any given employer. To the contrary,
I find that Respondent's employees work at least a regular
40-hour week and work every week of the year. Of course,
there may be vacations, etc.
While many of the operations of the card parlors in
Gardena are regulated by the City Council, I find an ab-
sence of evidence that the labor relations between Respon-
dent and its employees are regulated by any regulatory
body in the field of labor management relations such as the
National Labor Relations Board. I find that for the Board
to exercise jurisdiction in this case, such exercise of juris-
diction would substantially contribute to stability in labor
relations .' Of course, I am not suggesting that the Board
should exercise jurisdiction over "small" card parlors or
those which do not otherwise meet normal Board stan-
dards, but I do conclude that the impact of labor disputes
in card parlors such as Respondent's, of which there well
may.be more than six, is substantial and warrants the
Board's exercise of jurisdiction. The Board should exercise
jurisdiction over a card parlor, such as Respondent, and
particularly over Respondent.
Respondent herein, the Anthony Company, d/b/a El
Dorado Club, at all times material herein , has been a limit-
ed partnership duly organized and existing under the laws
6 In the instant case , a strike or lockout would have had a substantial
effect upon a rather large industry in a rather small community.
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the State of California, where the principal place of busi-
ness has been located in the city of Gardena, California,
where it has been engaged in the operation of a poker par-
lor, and incidentally a restaurant, and has at all material
times been engaged in a business affecting labor relations
within the meaning of the Act.
In the course and conduct of its business operations, it
annually derives gross revenues in excess of $3 million a
year, and annually purchases and receives goods valued in
excess of $50,000 directly from suppliers located outside
the State of California.
At all material times, Respondent has been an employer
engaged in an industry affecting commerce and it has been
engaged in commerce within the meaning of the Act and
has been an employer within the meaning of the Act.
Respondent's Claim that the Instant Dispute Should be
Referred to Arbitration
Respondent correctly contends that it has a contract
with the Union effective through June 23, 1976, which con-
tains a grievance procedure culminating in arbitration. The
grievance and arbitration procedure, as set forth by
Respondent's contract, provides:
All questions, grievances or controversies excepting
as otherwise noted herein, pertaining to the applica-
tion or interpretation of this Agreement shall be han-
dled in the following manner.
Respondent's counsel correctly contends that the instant
dispute rises out of an arbitration award rendered as a re-
sult of a previous arbitration of a grievance pursuant to the
contract. Respondent's counsel is most incorrect in stating
that, "The essence of the instant dispute is an allegation
that Respondent has failed to comply with the arbitration
award." Such is true only in the most incidental fashion. Be
that as it may, Respondent insists that the Board should
not exercise its jurisdiction in this matter, but should defer
to the arbitral policies provided for in the contract between
Respondent and the Union. I disagree.
The whole trouble with Respondent's position is that
Hogg successfully availed himself of the grievance and ar-
bitration proceeding and, as a result of his "success," Hogg
and Flynn were victims of violations of Section 8(a)(3) by
Respondent and violations of Section 8(a)(1) by Respon-
dent. They were instant and grievous. Again, to have re-
sorted to arbitration herein most probably, or at least in all
likelihood, would have resulted only in further violations of
the Act by Respondent. Respondent by its many violations
of Section 8(a)(3) and (1) of the Act during and after and
because of the prior arbitration proceeding made it clear to
employees that resort to arbitration by employees was an
invitation by employees to the Respondent to discriminate
against them in violation of Section 8(a)(3) and (1) of the
Act. I am well familiar with the line of cases which have
followed Collyer Insulated Wire, 192 NLRB 837 (1971), and
know that the Board prefers a policy of deferring to griev-
ance and arbitration proceedings of an existing collective-
bargaining agreement, in normal circumstances. However,
I find this is not a normal circumstance. As this Decision
will show, the wrath of Respondent descended upon Hogg
for grieving and descended upon Flynn who only attended
Hogg's arbitration hearing. There is not the slightest doubt
in my mind, and I hereby find as a fact, that Respondent
discriminated in a variety of ways against Hogg and Flynn
because they participated in grievance and/or arbitration
proceedings under the contract between the Union and Re-
spondent. Respondent's violations of Section 8(a)(1) and
(3) with respect to Hogg and Flynn most effectively fore-
closed and frustrated and made it almost asinine for
Respondent's employees to invoke the grievance and arbi-
tration procedure. Although the arbitrator ruled in favor of
Hogg, Respondent continued to discriminate against Hogg
after its almost unbelievable, provocative, and unlawful re-
instatement procedures. I find no suggestion that Flynn
was anything but a satisfactory employee before March 13,
the first day of the arbitration proceeding, which he attend-
ed. Thereafter he was subjected for a period of months to
violations of Section 8(a)(3) and (1) by Respondent until he
was finally terminated on July 28, 1974, in violation of Sec-
tion 8(a)(3) and (1) of the Act.
I know the Board will not require employees who have
been most grievously punished for invoking the protection
and solace of the grievance and arbitration procedure in
the contract, by Respondent, to resort to that grievance
and arbitration procedure rather than seek the protection
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Culinary Workers and Bartenders Union , Local No. 814
(AFL-CIO), herein the Union , is now and has been at all
times material herein a labor organization within the
meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
Among other things, the issues include:
1. (a) Whether Respondent unlawfully issued a written
warning to Richard J. Flynn, an employee of Respondent
on March 15, 1974;7
(b) On or about March 15, did Respondent unlawfully
restrict Flynn to a specific section within the work area so
as to cause a loss of earnings for Flynn;
(c) On or about April 8, did Respondent unlawfully sus-
pend Flynn for 3 days without pay;
(d) On or about July 28, did Respondent discharge
Flynn in violation of the Act and since that date has it
failed and refused and continued to fail and refuse to rein-
state Flynn to his former position of employment;
(e) On or about July 31, did Respondent illegally impose
upon Melvin S. Hogg, its employee, a rule prohibiting
Hogg's presence on Respondent's premises excepting for
the time immediately preceding and immediately following
Hogg's working hours;
(f) On or about October 5, did Respondent illegally is-
sue a written warning notice to Hogg;
7 Hereinafter all dates are in 1974, unless otherwise specified.
EL DORADO CLUB
(g) On or about August 26, and continuing to date, has
Respondent illegally initiated a change in the time at which
new decks of playing cards would be opened so as to de-
prive Hogg of the tips involved therein, thereby causing
resultant loss in earnings to Hogg.
2. On or about April 8, did Respondent through George
Anthony , at its place of business , inform an employee that
his harsher working conditions were due to his appearance
at an arbitration proceeding.
3. On or about April 15, did Respondent through its
agent, Brimmer , inform an employee that he was no longer
a good employee because he had attended an arbitration
proceeding.
4. On or about July 29, did Respondent through George
Anthony, at his place of business, illegally inform an em-
ployee that he would be permitted to return to work pur-
suant to an arbitrator's decision, but that he would be giv-
en no work to perform, and would not be restored to his
former position.
B. The Facts
1. Discrimination with respect to Richard Flynn
Richard Flynn worked for Respondent for more than 3
years as a floorman . On March 13 and March 25, an arbi-
tration hearing pursuant to the contract between Respon-
dent and the Union was held involving Hogg.
On March 13, accordinglrfthe credited testimony of
Flynn, whose demeanor impressed me most favorably and
whose testimony as a whole I find to have been most believa-
ble, at about 9 in he morning , called Respondent's office
from the Hearin oom and spoke to one of Respondent's
managers, Irv' g Hackman .8 Flynn told Hackman he was
going to a court session in downtown Los Angeles and did
not know hov long he would be gone but that he would be
in as soon as possible and if it should take longer, he would
call back. There is no question that Flynn first called in
later than the "prescribed" time for calling in, if one were
going to be tardy? He received no reprimand on the
phone. Of course, over the years some such phone calls,
under such a rule, would have been an exercise in futility,
because managers would not have been present 4 hours
before the earliest reporting time.
Flynn had told Mr. Anthony at the hearing that he had
called in and notified Mr. Hackman of his absence and
that he would get to work as soon as the business at the
hearing was over with.10 The Union notified Flynn that the
arbitration hearing would take all day. Thus, Flynn about
10 a.m. again spoke to Mr. Hackman and told Hackman
that he had just received word that they were going to be
there all day. He told Hackman that Hackman need not
expect his presence there that day. Hackman said, "Fine."
About 10 a.m., when Flynn also told Mr. Anthony that he
was going to be there at the hearing to testify and would
8 Hackman testified that he was a lawyer. Where he was admitted to
practice law, if any place, the record does not reveal. He impressed me as a
hijhly intelligent man.
Four hours?
10 Anthony made no reply.
893
probably be there all day, Mr. Anthony said nothing in
reply. Prior to the arbitration hearing, when Flynn called
in about being late, written warnings were not used. They
did not, according to Mr. Hackman, come into effect until
after the arbitration of Melvin Hogg, that is, the first day
of the arbitration hearing."
At the time that Flynn placed the phone calls to Hack-
man on March 13, Hackman knew that an arbitration
hearing involving employee Melvin Hogg was taking place.
The next day, March 14, the Club was closed. On March
15, Flynn was at work and was given a written reprimand
or written warning by Hackman for not giving 4 hours'
prior notice on March 13 that he would be absent. Hack-
man knew that Flynn had been at an arbitration hearing.
Hackman gave Flynn no warning of any kind over the
telephone.
According to Hackman, the requirement that an em-
ployee call in at least 4 hours prior to the time that he was
going to be late for work was posted on the bulletin board,
with other postings, for about 6 months prior to the arbi-
tration.'2 The posted rules are in evidence as Respondent's
Exhibit 4. Hackman testified that he never told any of the
men of a rule that they had to call in 4 hours ahead of time
if they weren't going to be able to come into work on time.
He never gave such notification to the chip girls. It was the
day after the first arbitration hearing involving Hogg, i.e.,
March 14, that George Anthony instructed his managers to
begin a new system of discipline. They were to give warnings
in writing and suspensions in writing. Prior to Flynn's writ-
ten warning on March 16, in the casino, no employee in the
casino had ever been so warned. Katie DeChamplain, a
chip girl for Respondent,13 attended the second day of the
hearing for Hogg on March 25. She did not call in to report
that she would be either late or absent but left it up to
Flynn to call in for her when he called in for himself. She
received no warning slip for not calling in at least 4 hours
prior to the time she expected to report. She had never
heard of a rule that an employee had to call in 4 hours
before a tardiness. Employees regularly failed to call in and
were never disciplined.14 Both she and other employees fre-
quently failed to turn in collection slips in timely fashion
and were not issued warning letters nor were they suspend-
ed. On occasions, employees had even gone home with the
money in their pockets. Of course, it was returned to the
Club in the morning.
The record as a whole reveals that George Anthony was
imbued with a virulent dislike of his employees engaging in
union or other protected concerted activities, particularly
arbitration hearings. Hackman testified that after the first
day of the arbitration hearing on March 13, Anthony told
the managers that they were to give written warnings to
employees to substantiate what Respondent was doing. In
giving a written notice, for the first time in history, to
Flynn, after he had apparently acted in a most reasonable
manner, makes clear that the notice was given to Flynn
because he had engaged in the protected concerted activity
11 Thus, completely unknown to Flynn
12 Nothing about written warning notices
13 Also a union steward I found her most honest
14 She was refreshingly honest in her testimony. I believe it
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of attending the arbitration hearing. It violated Section
8(a)(1) of the Act.
Flynn attended the second day of Hogg's hearing on
March 25, along with two other employees. Before Flynn
appeared on March 25, he had customarily relieved in sec-
tion 1 and 2 where tips or "tokes" of $5 were normally
given 15 to floormen for breaking new cards.
It may here be noted that the poker or other games were
played in one or another of three sections , known as 1, 2,
or 3. The highest stakes were played in section 1, the small-
er stakes were usually played in section 2 and much smaller
stakes were played in section 3, which was Flynn's usual
station.
For a period of time, one of the games customarily
played in section 3 was a game known as the "3-6 Blind"
game . That game normally received a new deck of cards
every 8 hours and the floorman in charge normally would
be expected to receive a $5 tip or toke for breaking the
deck. On March 15, the 3-6 Blind game was moved to
another section, allegedly, according to Hackman, because
section 3 was too noisy.16 In fact, it was not particularly
unusual for sections 1 and/or 2 to be noisy. On March 15,
Respondent moved the 3-6 Blind game out of section 3,
thereby depriving Flynn of an opportunity to get a tip or
toke for the breaking of cards in the 3-6 Blind game. Hack-
man testified that the game was moved from Section 3
because a customer complained that the table was too noi-
sy. It appears the game moved from one station to another
over a period of years. The move, with respect to Flynn,
violated Section 8(a)(3) and (1) of the Act.
Employee Katie DeChamplain, a stewardess for the
Union and an employee of Respondent for 15 years, testi-
fied that Flynn called in for her on March 25, the second
day of Hogg's arbitration hearing. She thought that she
would be in by 1, but she never showed up, and never
received a warning notice of any kind.
It was shortly after his attendance at the March 25 arbi-
tration hearing that Flynn's schedule was changed so that
he no longer worked relief in sections 1 and 2 and, conse-
quently, could not receive tips or tokes for breaking decks
in such sections , as had been the custom.
The records of card breaks indicate that after Flynn's
appearance at the arbitration hearing on March 25, it was
rare for him to receive even one break a day through
March, and he had none during April and May and practi-
cally none through mid-June. After the middle of June,
Flynn had several breaks and in July he again began to
average about two breaks a day as had been the fact prior
to his attendance on March 25 at Hogg's arbitration hear-
ing. It was a violation of Section 8(a)(3) and 1 of the Act
for Respondent so to assign Flynn that he lost an opportu-
nity to make money.
On April 5, there came time for the 6:30 p.m. collection
from the tables. The chip girls picked up the collections
and Flynn marked their books and gave them their books
back and kept a receipt.11 He was of the opinion that he
had turned everything into the card desk girl. However,
1! By guests.
16 The 3-6 Blind game was being played in section 3 at the time of the
hearing herein.
17 The custom.
one of the girls, who was a night girl who had come on
early, after the collection period, went on her break and
took her book with her in her apron. He was not familiar
with the girl and did not work with her every day and her
presence eluded him. He was unaware of her misfeasance.
He was preparing to punch out and go home. He was
paged to the card desk, and they told him the collection of
"Linda Kaye" was missing. This was the new girl. Flynn
inquired if she were not on break, and he went to the res-
taurant, saw her, and rectified the situation. Money and
slips were turned in while he was on the premises. Nothing
was said after the slip was turned in or about getting it
from a night girl in the restaurant or anything else. He did
not work the next day but went in the following day, a
Sunday. Nothing was said to him concerning his failure to
have had the collection from Kaye in on time. Flynn had
previously turned in collections late and never had been
given a written warning notice for so doing. He had never
been disciplined in any manner for turning in a collection
slip late.'s
He reported to work on Monday, April 8. Hackman told
Flynn he was not to work on Tuesday, which was a "float"
day. Tuesday would be the busiest day at the El Dora-
do, since two other clubs in town are closed down, and
such a day is greater in volume and tips are more frequent
for everyone at the El Dorado. Flynn brought to
Hackman's attention that another floorman named Casey
Swank had never had even one "float" day and Flynn vol-
unteered to take his float day after Swank had his, or
otherwise, Flynn would go to the Union. Hackman replied
that Flynn was to work the next day.
The conversation finally came to an end, when Hack-
man called Flynn into Hackman's office and then gave him
a written warning and a written 3-day suspension without
pay for failing to turn in his collection on time on April 5.
Nothing had been mentioned about this since April 5.
Flynn remarked the difference in treatment which was
being accorded to the chip girl who was getting merely a
written warning but not a suspension as was Flynn. Flynn
had never heard of any other employee receiving a written
suspension for failure to turn in a collection. His failure in
this regard was innocuous. It was clearly inadvertent.
In dealing with Flynn's failure to turn in the collection
slip, Hackamn first suggested that Flynn had left the club
before the collection. He then said that Flynn "was on the
verge of leaving."19 Hackman had previously testified that
floormen, prior to April 5, had not been given 3-day suspen-
sions for failure to turn in collections or slips because they had
not been involved in anything "of this nature." When asked
"of what nature?" Hackman replied "of leaving the club."
Hackman testified "he [Flynn] had punched out and was
on his way."20 Although there is no evidence that during
this occurrence Flynn left the premises, Hackman testified,
"I don't think he had left the premises before." When it
was pointed out to him that Flynn did not leave the prem-
ises on this occasion, then Hackman testified "he has had
times I think that he has missed a collection, yes, where he
was on the floor when I called him and I didn't discipline
is Thus, time passed , and his failure was treated as a nothing
191 find a substantial difference.
10 Where? Who? Flynn was at the Club at all material times.
EL DORADO CLUB 895
him at all ." I still don't understand Hackman 's explanation
of why he gave Flynn, who was on the premises, a written
warning notice and suspended him for 3 days when it was
my understanding that Hackman had never given a warn-
ing notice to any floorman who had not turned in his col-
lection notice or slip and Flynn had not left the premises.
The only suspension Hackman had ever given for this rea-
son was in the case of Mr . Flynn . He had not discussed this
suspension with Mr. Anthony. Up until Flynn got this sus-
pension notice , he had never heard of any other employee
getting such a notice . Hackman had told a Board agent
before the hearing that the suspension was given because
collections "were the only source of income ." The 3-day
suspension violated Section 8(a)(3) and (1) of the Act. It
was also given because he threatened to go to the Union
about the "float" day, as well as by attendance at the union
arbitration.
Counsel for Respondent would attempt to put Flynn's
failure to make the one particular collection as a matter of
the greatest moment . That such is not true is well borne out
by the fact that Hackman waited from the evening of Fri-
day, April 5, when Flynn admittedly failed to turn in a
collection slip on time , until late April 8 , to give Flynn a
written warning and a written 3-day suspension without pay.
The failure to turn the collection slip in on time was obvi-
ously a pretext for giving Flynn some sort of warning and
a suspension , amounting to a substantial loss of pay. It
may be noted that the giving of the warning notice and the
suspension slip followed on the heels of Flynn's protest at
taking the next day, Tuesday, as a "float" day when such
should properly have been assigned to Floorman Casey
Swank . Respondent 's Exhibit 10 is the contract between
the Union and the Respondent, and not requiring Swank
to take off on Tuesday was preferential treatment under
that contract . This was one of the real reasons for taking
such action against Flynn in violation of Section 8(a)(1)
and (3) of the Act. No reasonable explanation is offered by
Respondent for giving Flynn a written warning notice, and
the only written suspension to a floorman for such reason,
on April 8, for an action he committed on April 5. Such
action appears to have been so trivial that Hackman did
not even discuss the matter with George Anthony before
taking the action he did on April 8. In fact, before Flynn
was given the written warning notice and written suspen-
sion , he was not even given an oral reprimand.
Not long after Flynn had the conversation with Hack-
man about the 3-day suspension, he spoke to George An-
thony in the El Dorado bar. Anthony was reluctant to
speak to Flynn apparently because Hackman was present.
Later on, at the El Dorado Club, Flynn and Anthony had
a conversation between themselves . During a fairly lengthy
conversation, Flynn stated that the arrangement of his
work schedule and break schedule and keeping him from
"the new decks" 21 and other forms of harassment were
being leveled at him because he had appeared at Melvin
Hogg's arbitration hearing . Anthony replied by stating that
when Don Brimmer and Marty Raposa and Anthony saw
Flynn at that arbitration hearing they knew Flynn "wasn't
21 Tips.
on their ball team."22 Flynn replied that he had never
backed off for a paycheck and wasn't about to because of
this difference of opinion, explaining that he meant that he
was a gentleman who put in 8 hours a day, 5 days a week,
did the best he could at his job, etc., and deserved all the
full pay that he could get. Anthony told him he would
"have to take it like a man."23 Flynn testified that he point-
ed out to Anthony that he had not even testified against
Respondent, and had not said anything detrimental to An-
thony or to his business and Flynn was getting this treat-
ment simply because of his appearance at the hearing.
Anthony's statement to Flynn that when they saw him at
the arbitration hearing, "They knew he wasn't on their ball
team" and that he'd have to take discipline "like a man,"
violated Section 8(a)(1) of the Act.
Even though Flynn was given a warning notice and a
suspension notice for failing to turn in a slip in connection
with a game, he brought such failings on the part of other
employees to the attention of almost every other manager
and no manager took any disciplinary action against the
people involved. In fact, most managers appeared to resent
this activity of Flynn.
Hackman, as well as other managers, simply ignored
Flynn's complaints of wrongdoing on the part of fellow
employees, similar to that allegedly committed by Flynn,
and no investigations appear to have been undertaken nor
does it appear that any discipline was meted out to any
violator.
Brimmer was an unusual witness. He was not employed
by Respondent when he testified and he was called as a
witness for General Counsel 24 Much of his testimony was
confusing. I have been able to select parts which were not
confusing and which I credit.
I find it to be the fact that some time in May or June,
Flynn broke a deck of cards for Brimmer, while Flynn was
relieving in a section. This appears to have been the first
deck Flynn had broken for any manager of Respondent for
a considerable period of time. Brimmer did not do the sim-
ple, easy and honest thing, that is, write Flynn's name
down as the floorman for whom the cards had been bro-
ken. He deliberately wrote down the name of another
floorman who had naught to do with the breakage.
In spite of the nature of Brimmer's testimony, careful
study reveals that there could have been no other reason-
able explanation for putting down the name of a floorman
other than Flynn, as the one for whom the deck was bro-
ken, than the story given by Brimmer. Brimmer told Flynn
that he would have made a good floorman had he not
attended Hogg's arbitration. Brimmer made it plain to
Flynn that he wrote down the name of a floorman other
than Flynn with respect to breaking cards because George
Anthony would have been most upset had he learned that
Brimmer permitted Flynn to break cards. Brimmer told
Flynn that when Flynn showed up at Hogg's hearing "it
was all over." Brimmer added that no manager could give
Flynn decks to break and there was nothing that could be
done. He concluded by telling Flynn that no matter how
22 This amounted to telling Flynn he was engaging in protected concerted
activities, contrary to the desires of Respondent.
23 Obviously referring to discipline for union activities.
24 He was unbiased if, at times, confused.
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
good a floorman he might be, Flynn was not going to
change George Anthony's mind . At the time this incident
occurred, Brimmer told Flynn he would have been a good
floorman if he had not gone to the arbitration.
Before Hogg's arbitration hearing , Flynn served as floor-
man in section 3 and relieved in sections 1 and 2. It has
been noted that stacks of chips or amounts of money
played at the casino are much higher in sections 1 and 2
than in section 3. In fact, a game in section 1 can involve
thousands of dollars. Tips or tokes were much more fre-
quent in sections 1 and 2 and particularly in section 1.
Cards were broken much more frequently in sections I and
2 than in 3, and the opportunities for tips or tokes were
much more numerous in sections 1 and 2. A normal tip was
$5 although there might be no tip at all, which would mean
that the floorman had been "stiffed," or the tip might be
more than $5. Very shortly after Flynn attended the second
day of Hogg's arbitration, he was deprived of the opportu-
nity of relieving in sections 1 and 2 and thus no longer was
he in a position to receive tips for breaking cards in those
moneymaking sections. At one point in his testimony,
Hackman testified that after the arbitration hearing,
Flynn's assignment , in terms of bottom relief man, that is,
relieving tables I and 2 , did not change . Later, on cross-
examination , he testified that after Hogg's arbitration hear-
ing, Flynn worked in sections 1 and 2 with some degree of
regularity "for a while." He added that somewhere around
April or May or June, Flynn did not go into sections 1 and
2. Also , tips or tokes obviously meant a lot to a floorman
so far as his earnings are concerned . Hackman testified
that Flynn was better suited to be kept in section 3 so the
customers could be kept happy . When asked whether there
was anything about the Club's business that warranted a
change which would deprive Flynn of an opportunity to
work in sections 1 and 2 , he replied merely, "I thought it
best that he devote his time to Section Three." He added "I
felt then at the time that the people in that section would
have a little more confidence if I kept him in there as the
floorman , as the floorman in that section , where they knew
he was there most of the time, and he was kept in that
particular section where-."23 Hackman conceded that
Flynn was a "good floorman." Hackman testified he had
no reason to believe that Flynn would not be pleasing to
customers in section 1 (where the highest stakes were
played and where the customers were treated with all due
decorum 26 ). The fact is that Flynn was put back to work
in sections 1 and 2 in June and July. When this happened,
Hackman had Flynn working the entire day, Sunday, in
section 1 . It appears clear to me that Hackman was not
exaggerating at all when he classified Flynn as a "good"
floorman. So, just from section 1 alone in the months of
June and July, Flynn received about 39 tokes or, at least,
that number of decks of cards were broken for him27
We have seen how Flynn first started with the first writ-
ten warning notice in Respondent 's history , and then had
the 3-6 Blind game removed from section 3, so that he
could not get a toke out of that, and then how Flynn's
work was restricted almost entirely to section 3.28 We have
considered the fact that he received the first written warn-
ing for not turning in a collection slip, which failure I, and
I think any fairminded person, would attribute to normal
human error , and we have further seen that for that simple
human error, he received the first "written suspension no-
tice in the history of the club," as a result of which he lost
at least about $60 in wages 29 It appears obvious , then, that
the giving of the written warning slip and the written sus-
pension for an action which had taken place almost 4 days
earlier was but a punishment for not readily agreeing to
take a "float" on Tuesday, as noted above, and for his
other union activities. Hackman's explanation that Flynn
received such disparate treatment solely because he had
"left the club" or appeared to be on the "verge of leaving
the club," I find to be made out of whole cloth.30 Hackman
dug pretty far to come up with even the semblance of an
explanation as to why Flynn should be the first person in
history to receive a written warning notice and a 3-day
suspension for failing to turn in a collection slip on time.
Further, we must not ignore that Flynn was the first em-
ployee to receive a written warning slip for failure to call in
4 hours prior to the time that he would be late. I find the
suspension and the change in work schedules for Flynn
violated Section 8(a)(3) and (1) of the Act.
Flynn had oral surgery in connection with infected root
canals on July 25. On July 26 when returning from work,
he was involved in a car wreck which involved serious
damage to his car door. Partly because of the pain associat-
ed with the oral surgery, he did not come into work on
Saturday, July 27. He left for work on July 28, still suffer-
ing from pain . He did not anticipate that he would have to
spend as much time as he did tying on the damaged front
door, so that when he arrived at work, he had to spend
extra time untying the front door and tying it back on. He
arrived at work 20 minutes late, having failed to call in.
John Anthony was a comparatively young man who was
George Anthony's son. Respondent, in his answer, admits
that John Anthony was a manager and agent of Respon-
dent within the meaning of the Act. Some time after Flynn
arrived at work , 20 minutes late, he was called into Manag-
er John Anthony's office and John Anthony gave him a
written notice for his failure to be punctual, pointing out
that he was 20 minutes late . When Flynn saw what the
written notice was for, he stated he was sorry but he could
not sign the slip. John Anthony asked him why not, and
Flynn told him he was even lucky to be there with the bad
tooth and the broken door of the car, and he explained
about the accident and the tooth 3I His jaw was still swol-
len. He stated, "It is no way to reward your employees by
giving them a pink slip for trying to make it down here
under these conditions." To which Anthony replied that
those were Flynn's problems and Anthony would still have
to give Flynn the pink slip. Flynn started, as usual, to write
a reply on the slip, writing "The reason for my tardiness on
Sunday, July 28, 1974" and the writing thereafter ceased,
when Anthony told Flynn they were not accepting such
28 Much to Flynn's financial detriment.
25 Little or no tips 29 Tips?
26 As Hackman apparently believed , Flynn could do so. 30 Had he or hadn't he?
27 Tokes and breaks appear to have gone together . 31 Hackman was fully aware of the tooth problem.
EL DORADO CLUB
written reasons or explanations any more. Flynn stated
"then we have nothing further to discuss." Flynn testified,
I find truthfully,32 that he stated they had no further busi-
ness to conduct and he was going to the coffee shop where
he would be if John Anthony wished to see him 33 I credit
Flynn's testimony that he used no profanity during this
meeting with John Anthony and I further credit his testi-
mony that he did not tear up the warning slip at any time.
I find, as Flynn testified, that not only did he never tear it
in any manner but it was never torn in his presence on this
or any other occasion. The fact is that the warning notice,
as produced at the hearing, was torn into three pieces. Lat-
er that evening, when a night relief man took his position
on the floor, Flynn was again called to the office. John
Anthony was there. Flynn's discharge papers were on the
desk. Before Flynn was called into the office on this occa-
sion, he suspected that he was going to receive his notifica-
tion of discharge because the office secretary, who was off
on Sunday, came into the building and he surmised that
she was there to do the paper work for his dismissal. John
Anthony told him he would have to let him go. Flynn was
supplied with his termination paper, which is in evidence as
General Counsel's Exhibit 7. It states that he was dis-
charged for cause, having previously received three sepa-
rate warning notices for late arrivals and he allegedly tore
up his last notice. The termination notice continued by
stating that in answer to John Anthony's request for
Flynn's signature on the warning slip, Flynn expressed
himself in a vulgar and insulting manner and addressed a
four-letter word to John Anthony. On this occasion, he was
permitted to write a reply on the termination notice and he
wrote that the claim of vulgar language in an insolent man-
ner by him on the occasion of being given a warning slip
for lateness was completely erroneous and was interjected
to lend credence to suppressive and selective distribution
of the warning slip. Flynn credibly denied he had torn the
slip. Flynn concluded, by writing "the only act I am guilty
is civil disobediance [sic] to an injust form of discrimina-
tion." Flynn also testified that he said, "I wasn't using any
slang."
John Anthony replied that his father had asked him
what Flynn had said, and John Anthony told him the al-
leged conversation and events. The short phrase containing
a four-letter word is in quotes in the slip. 'Flynn testified
that he told John Anthony General Counsel's Exhibit 7 did
not read in sequence. Flynn testified it was he who drew
the lines around the last part of the employee's termination
notice. He told Anthony that John Anthony knew Flynn
did not use any obscenity. When Flynn took the termina-
tion notice, he received a pay slip. I credit entirely Flynn's
testimony that at no time that day did he use a statement
containing a four-letter word or any other obscenity to
John Anthony. He'used no such vulgar language or any
obscene language or dirty or insulting words to John An-
thony on July 28. He had not torn up the warning notice.
Subsequently, Flynn, with his union representative, Cas-
tro, met with George Anthony. The union representative
32 As usual.
33 Flynn and John Anthony had been on very good terms socially, up
until about 2 weeks earlier , when the good relationship terminated. Why?
897
asked George Anthony exactly what had happened and
Anthony took out Flynn's personnel folder.34 Anthony said
Flynn had been discharged for repeated tardiness and in-
subordination and he could not-have that type of insubor-
dination, referring particularly to the language that was
allegedly used by Flynn. Flynn stated he had made no such
statements and he did not believe he was "legally late for
work three times ." Flynn stated that he had not ripped up
the warning notice for tardiness and George Anthony said
"I don't know who did, then."35 Flynn replied, "perhaps
John did." George Anthony replied that he didn't know
why his son would rip it up.36 The discussion was mostly
over the validity of pink slips and Flynn did not believe
there was any discussion with respect to the alleged vulgar-
ity used by him. After Flynn had upset George Anthony by
suggesting that pink slips given to him by his son, John
Anthony, were "bogus," George Anthony became irate
and told Castro he would take it up at a later date with
Castro and he was barring Flynn from the building until
the entire matter was cleared up and Flynn could not be on
the premises without union representation. This "barring"
violated Section 8(a)(3) and (1) of the Act.
My findings with respect to the termination of Flynn
cannot properly be considered without a discussion of
Respondent's version of what happened in connection with
the occurrences of July 28. John Anthony testified that on
Saturday he had been told he did not know whether or not
Flynn would be in on Sunday because he was having trouble
with his tooth 37 When he had not arrived on time, Antho-
ny allegedly figured he wasn't going to show up and then
had the warning slip drawn up when Flynn arrived 20 min-
utes late.38
He testified he had Flynn called into the office and pre-
sented Flynn with a written warning notice and Flynn told
him he thought it was unfair, explaining that he was feeling
bad because of his tooth and medication and he quoted
Flynn as saying he "had been looking for a door for his car
that morning and that was why he was late."39 According
to John Anthony he simply told Flynn that Flynn hadn't
called in and they didn't know where he, was and that is
why he was being given a notice.40 Anthony testified that
Flynn wanted to write on the notice and Anthony asked
him what he was writing, at which point, Flynn began to
get upset, asking if he wasn't even going to let him finish
writing before Anthony questioned him about what he was
writing. John Anthony allegedly excused himself for inter-
rupting Flynn and Flynn "tore up the notice." According to
John Anthony, Flynn again stated he thought it was unfair
and used vulgar language while tearing up the notice.41 John
denied telling Flynn he could not write a reply on the no-
tice. Flynn allegedly spoke in a loud voice and John An-
thony allegedly was not angry, even after Flynn allegedly
34 George Anthony didn't know?
35 Who does) Flynn did not.
36 There were other posstbihnes.
37 See Hackman.
38 This was without even making an inquiry of Flynn or Hackman?
39 It appears ridiculous to me that anyone would look for a car door early
on a Sunday morning in Gardena.
40 Hackman?
41 The "vulgar language" is at p. 875 of the transcript.
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
directed a phrase containing a four-letter word at him 42
Allegedly, Flynn asked him what he was going to do and
John told him that he didn't know but he might have to
terminate him.43 Thereafter, John Anthony allegedly con-
ferred with George Anthony and told him that Flynn had
been late "and I gave him a warning notice and he tore it
up."44 John Anthony didn't recall whether he told his fa-
ther what reasons Flynn had given for being late. John
asked his father, George Anthony, if George wanted him to
terminate Flynn. It may be noted that John Anthony had
allegedly told his father in the very beginning of this con-
versation that Flynn had torn up the warning notice. Con-
tinuing his testimony, John Anthony stated that his father
wanted to make sure there was "sufficient documentation."
They then went into the office. John allegedly told his father
he wanted to fire Flynn and he thought he had sufficient rea-
son because "there was sufficient documentary evidence that
he had been late and absent quite a bit along with his insubor-
dination, as a result of the accumulation of this.""' When I
asked John Anthony if he had referred to any particular
type of insubordination, he then testified that he explained
to his father what Flynn had done with the warning notice
and that that was "effete. " I told him I didn't understand
what he had said, stating it sounded to me like "in feet."
The witness then stated "Effete."The witness then said that
he was not sure of the meaning "of that word." John An-
thony further testified he told his father he believed Flynn
should be terminated because he had torn up the warning
notice and had been insubprdinate.46 Allegedly his father
asked him in what way he had been insubordinate.
John Anthony had testified that he had not said any-
thing to his father before he asked for Flynn's termination,
other than simply telling him that he had given him the
warning notice and he had torn it up. He had stated that
the reasons for firing Flynn would be that there was suffi-
cient documentary evidence, that he had been late and ab-
sent quite a bit along with his insubordination and an ac-
cumulation of this. What I consider to be of great
importance, namely, the alleged addressing of a four-letter
word applicable to John Anthony or Respondent, was not
even mentioned by John as of this time. It was not until later,
when John told his father about Flynn's alleged insubordi-
nation, that he allegedly referred to the four-letter word.
Tearing up the warning notice, being "effete," being late
and absent quite a bit, along with his insubordination, and
his use of a four-letter word to John Anthony, were all
explained to John's father as John at last testified. I ob-
served George Anthony very closely, he being seated next
to his attorney throughout the hearing with a small excep-
tion, and testifying before me. He impressed me as being a
very strong man of determination and speedy reactions,
42 Patienna virtuta est.
43 The record makes it abundantly clear that all managers have the unfet-
tered right to hire , fire , or otherwise discipline. However , John Anthony did
not recall, when he testified, whether he had been told by his father that he
had such authority . Admitted in the answer to the complaint?
44 Note that no reference is made to the use of a four -letter word.
45 No reference here , apparently , to what he would consider to have been
the most important thing, namely, tearing up the warning notice and ob-
scene language . John testified that when the determination to fire Flynn was
made, John personally did not know of the number of warning notices
Flynn had received for lateness.
No mention of alleged 'obscenity "
and boss of the Club, and a man who believed in his own
principles and had no regard for principles which were de-
liberately opposed to his. No one would insult his son with
impunity, I am certain. He would have been outraged at
John's recitation of what allegedly had happened between
John and Flynn. I do not for one moment believe he would
have had any need for "documentation," particularly if he
had seen the warning notice torn up into three pieces, al-
legedly by Flynn, and had heard John's recitation of the
four-letter word. Yet John Anthony expects me to believe
that George Anthony only wanted John to do what John
wanted to do. George Anthony, I am convinced, would
have made his own immediate determination. He would
have immediately fired Flynn. John Anthony admitted
that George Anthony told him John had George's authori-
ty to do what John recommended.41
John Anthony testified that after Flynn tore up the
warning notice, he decided in his mind that Flynn should
be fired and that was the prime basis for his "recom-
mending" to his father that Flynn be terminated. 48 He con-
sidered the use of the phrase with the four-letter word sim-
ply as a superfluous. I believe and find that George
Anthony's first immediate and spontaneous reaction to
John's alleged recitation of Flynn's alleged misdeeds that
morning, would be to ask John why John had not fired
Flynn right away and tell him to wait around for the writ-
ten notice and the paycheck. According to John, later that
evening, he called Flynn in and gave him the termination
notice together with the paycheck. This discharge violated
Section 8(a)(3) and (1) of the Act. Allegedly, Flynn made a
lot of accusations and denied using any obscene words
when he was discharged. At page 889 of the transcript,
John Anthony testified it seemed odd to him that 4 or 5
hours after Flynn allegedly addressed a four-letter word to
John, Flynn would deny to John that he had so addressed
him. Certainly if Flynn had so addressed him, he would
know that John would be well aware of the fact.
With respect to the termination of employment notice,
either the bookkeeper or John's father suggested to John
that he write the phrase containing the four-letter word on
the notice. Either one of them suggested to him, he testi-
fied, that he insert the words "and insolent" between the
words vulgar and manner and suggested to him that he
draw an arrow thereon and he wrote the phrase containing
the four-letter word at their suggestion.
Counsel for Respondent in his brief at page 38 states,
"the decision to fire Flynn was made by John Anthony.
" I think it is a fair inference from John Anthony's
testimony that the decision to fire Flynn was made by
George Anthony. I am convinced that if Flynn had been as
insolent and insubordinate when he received the notice
with respect to lateness , including tearing up the notice, as
John testified, John Anthony, manager, would have fired
him on the spot. I am further convinced and find that if
John Anthony had reported to George Anthony, as he al-
legedly did, George Anthony would unhesitatingly and "im-
47 As I have found, Respondent's answer to the complaint admitted John
was a manager . The record reveals Respondent 's managers had independent
authority to fire.
48 Why a recommendation, especially under the circumstances?
EL DORADO CLUB 899
mediately" have discharged Flynn.49 I credit Flynn's testimo-
ny that he did not tear up the warning notice with respect
to lateness and that he was not insubordinate and did not
use vulgar or similar language . I make no finding as to who
actually tore up the warning notice.50 It was not Flynn and
I should not speculate, based upon the record in this case,
as to who it was. While I find that Flynn did not use a
four-letter word on the day of his termination, I do find
that this large poker parlor had many patrons and that the
use of four-letter words was not uncommon.
I find that Flynn had good and sufficient reason for
being late on July 28, particularly considering the fact that
he had had a most painful problem with infected teeth for
several days prior to July 28. I further credit in full his
testimony that it took him longer than he had expected to
tie on the door of his car. I find he did not say he was late
because he was trying to buy a door for his car, on a Sunday
morning.
Flynn's woes as a floorman at Respondent's began with
his attendance at an arbitration hearing on March 13. Tes-
timony of Brimmer and others and even George Anthony
himself makes it clear that management, particularly
George Anthony, considered Flynn's attendance at an ar-
bitration hearing where he happened to be a supporter of
the Union and the grievant, demonstrated to Respondent
that Flynn was not on Respondent's "ball team." There
was not even a suggestion of fault found with Flynn when
he called in twice on March 13 to say that he would be late
or absent because of the length of the arbitration hearing.
George Anthony, who was present at the arbitration hear-
ing, found no apparent fault with Flynn on this occasion.
Certainly selecting this alleged "infraction" for the imposi-
tion of a written warning notice to an employee, without
any notice to any employee that any written notices would
be given , demonstrates that it was designed to chill Flynn
in support of either or both the Union and the union griev-
ant, Hogg. I find that the issuance of this written warning
notice was a violation of Section 8(axl) of the Act.
The second day of the arbitration hearing was March 25.
Within a short time after this Flynn, who had been a relief
man on tables 1 and 2, was for a period of time, April,
May, and June, faced with a situation where he no longer
was permitted to work at tables I and 2, and the 3-6 Blind
game in section 3 was removed from that section.51 Al-
though Hackman testified at page 693 of the transcript that
only one customer had even requested that the game be
removed, Flynn was told by Hackman that he was moving
the game about March 15 because the section 3 spot was
"too noisy." Flynn properly pointed out that every one of
the sections had problems with noise. I have noted that as
of the time of the hearing, Respondent was then having the
3-6 Blind games played in section 3 even though, accord-
ing to Hackman, it was "still noisy." We thus find that at
least substantially beginning with March and through
April, May, and June, Flynn was not in a position to get
his customary tips. It is true that during March 15 through
March 31, he broke about 11 new decks, but this was prob-
49 What Flynn allegedly did and said was beyond toleration.
"There is insufficient probative and substantial evidence.
51 Tips at that game were not uncommon.
ably while he was still operating as a relief man at sections
I and 2.
At first Hackman testified that Flynn's schedule was not
changed shortly after the arbitration hearing. The records
show that after about March 15, Flynn averaged less than
a break a day and he had no breaks whatsoever during
April and May and through a considerable part of June,
and thus his income was substantially affected. He began
to get breaks after the middle of June, and in July he again
began to average his normal number of breaks, that is,
about two breaks a day. I am not at all impressed either as
to "credibility," or in any other way, that employees in
gaming houses report a lesser amount of tips to I.R.S. than
they actually received. I think this is probably true of most
employees who receive tips in addition to their wages.52 It
would be an almost impossible situation for the I.R.S. to
hire enough people to check the actual amount of tips re-
ceived by every employee who receives tips in this country.
Many thousands of extra employees would have to be hired
by the government.53 Whether true or not, I do not know
but I believe it is a matter of almost common knowledge
that waitresses, employees at crap tables, employees at
hamburger places, porters, etc., typically report as earned
income about 10 per cent of the tips they actually receive.
I find that by moving the 3-6 Blind game from section 3
and depriving Flynn of the opportunity to work in sections
1 and 2, Respondent substantially deprived Flynn of in-
come because of his union activities and activities on be-
half of grievant Hogg.54
George Anthony in no way attempted to conceal the fact
that he was greatly upset by the arbitrator's decision. I find
the deprivation of Flynn's income by Respondent for the
reasons found herein to be violative of Section 8(a)(3) and
(1) of the Act.
Flynn's discharge by Respondent violated Section
8(a)(3) and (1) of the Act.
2. Discrimination with respect to Melvin Hogg
Reference has already been made to an arbitration in-
volving Melvin Hogg on March 13 and March 25. The
arbitrator handed down his decision in that case on July
19. It was his award:
1. Melvin Hogg was NOT discharged for just cause;
2. The remedy shall be as follows:
(a) Melvin Hogg shall be reinstated on his next regularly
scheduled shift with full seniority rights and backpay, less
money earned elsewhere;
(b) The discharge shall be reduced to a written warning
notice for the reason stated above.
52 No doubt naughty.
53 Cost of which would be less than recovered.
54 I find Hackman 's testimony that Flynn was no longer allowed to work
in sections I and 2 because he was a good floorman who pleased the cus-
tomers in section 3 not to be credible.
I note that Hackman contended work during April, May, and June was
usually slow because of the racing season . I find such testimony not reliable
because no records were introduced to show that business was slow during
those months and although Respondent perhaps properly refers to the play-
ing of poker as a game of skill rather than gambling . I still cannot speculate
as to the number of seasoned poker players who would forsake the poker
parlor to attending horse racing.
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On July 29, Melvin Hogg,55 in the company of Union
Representative Al Castro, spoke to George Anthony at the
Club. Anthony stated that he did not agree with the opin-
ions of the award of the arbitrator and he didn't feel that
he had to go along with what was written by him. He said
he would give Hogg his job back but Hogg would have to
be given a desk job. George Anthony didn't say where the
desk would be, but Hogg was to be placed behind a desk
and he would continue to receive his pay, as he was getting
when he left, which was top floorman's pay, and Hogg
could take a break anytime he wanted to. Anthony added
that Hogg would have nothing to do, but just sit there all
day. He could read the paper or do anything else he want-
ed to do. He was not to do his former job; he was just to do
nothing all day; punch out and go home. I find this was a
violation of Section 8(a)(1) of the Act and 8(a)(3) of the
Act.
Several days later, George Anthony told Hogg he could
return to his former job but that he wouldn't be allowed on
the property until 15 minutes before starting work and he
would be required to leave immediately after work. Hogg
was the only employee working at a Gardena 56 poker par-
lor who was placed under such confinement. The rule was
enforced. I find this was a violation of Section 8(a)(1) and
(3) of the Act.
It was Anthony's contention that Hogg's criminal record
excused George Anthony's above-described actions with
respect to Hogg. He testified that Hogg and some other
individuals had been arrested for "bookmaking" and An-
thony had to pay a fine for $20,000. Of all those charged
with bookmaking,57 Hogg, charged with three counts of
bookmaking, was the only person named who was acquitted
of bookmaking.58
Allegedly, Anthony had been contacted on numerous
occasions by the Los Angeles Police Department and by
the Gardena Police who charged Hogg with bookmaking,
theft, and drug selling. Allegedly, this was a reason for
Anthony's treatment of Hogg after he was reinstated. The
record reveals that no policeman testified about Hogg at
this hearing, and no records of conviction were in evidence
with the exception of one piece of paper upon which I
place no reliance since I do not know who prepared it,
when it was prepared, or what it means.59
Before the arbitration, Hogg allegedly had stated in a
loud voice in the presence of customers that, "I can still
steal as much on nights as I can on days."60 Counsel for
Respondent in a most general fashion states that "Hogg
had shown an increasingly negative attitude toward the
Club's customers." According to Respondent' s counsel,
Anthony was concerned about Hogg's past criminal record
and "reports by police officials that Hogg's activities might
be continuing up to that time."
It is argued that it is entirely understandable that Mr.
Anthony was deeply concerned about Melvin Hogg who
55 He impressed me as a frank and honest witness
56 Hogg apparently was barred at another poker parlor in Gardena.
57 Many.
58 Not with respect to the El Dorado, Hogg had a prior criminal record,
known to Anthony, which did not bother Anthony before the arbitration
59 Anyone could have prepared it It does not look like a police or FBI or
another law enforcement record to me.
No credible evidence that he so spoke
could do great damage to the El Dorado business and the
customers' good will. Counsel for Respondent argues the
proposed placement of Hogg at a desk where he was to do
nothing excepting to write a manual for gamblers was not
retaliation against Hogg for having gone to arbitration. I
disagree entirely and emphatically. Respondent' s counsel
concedes that Hogg was barred from the Club beginning
August 5, at times other than 15 minutes before he was to
start work and 15 minutes after he finished work.
Respondent's counsel in his able brief refers to reports
from police officials that Hogg was suspected of numerous
activities including bookmaking, etc. No such reports are
in evidence and no police officials so testified.
Respondent's counsel speculates needlessly as to what
might happen to the Club were Hogg to engage in book-
making on the club premises 61
I find no reason to believe that George Anthony should
have been more concerned about Melvin Hogg's potential
for doing great damage to the El Dorado Club's business
and its customers' good will than he was before the arbitra-
tion involving Hogg. Before the arbitration, George Antho-
ny admittedly had knowledge of criminal activities on the
part of Hogg, long in the past. At the trial herein, George
Anthony held himself out as being a man of noble and
understanding disposition in that he felt that what a man
had done in the past was in the past and that he would look
upon an employee of his only in light of such employee's
activities as his employee. There is nothing in the record to
show that Melvin Hogg engaged in criminal activity of any
kind beginning with or subsequent to the arbitration hear-
ing.
On August 5, Hogg returned to work at the El Dorado
Club as a floorman in section 1. Respondent let no time
pass without seeing to it that Hogg was given a written
warning notice that day, allegedly for smoking a cigarette
while Hogg was on the floor. Hackman was the floorman at
this time and the record reveals that George Anthony
places considerable reliance upon Hackman who, as I have
noted, is an attorney.
The story is very simple. Either George Anthony was
mistaken or lied or Hogg did not violate a club rule by
smoking while he was on the floor. According to Hogg,
whom I entirely credit, he saw a cigarette on the floor, and
he picked it up and put it out in a container which was in
a cart which had been left up on the floor.
On this occasion, Hackman, at no time, saw Hogg smok-
ing a cigarette . George Anthony called Hackman to him
and said he saw Melvin Hogg smoking and he wanted
Hackman to see to it that Hogg got a warning notice.
Hackman immediately turned around and went back, and
Hogg had a cigarette in his hand , and Hackman asked him
if he was smoking .62 Hogg said he was not . Other employees,
including Katie DeChamplain, stated that Hogg hadn't been
smoking. Hogg testified that he had seen a lit cigarette on
the floor and he reached over and picked it up and was
looking for an ash tray to put it out. He observed a cart
which was available for the girls for dirty dishes and for the
busboys. There were ashtrays in it. He walked over to it to
61 There is no evidence that he had ever done so in the past or intended so
to do in the future.
62 Five to seven seconds had elapsed.
EL DORADO CLUB
put out the cigarette , at which time Mt. Hackman asked
him if he was smoking the cigarette . Hogg told him that he
wasn 't and according to Hogg 's credited testimony , three or
four girls at the same time said that Hogg wasn 't smoking the
cigarette , he had picked it up off the floor and put it out.
Hogg, being an honest witness , truthfully testified that 3
or 4 minutes later, Mr. Hackman returned to him and told
him he would have to write him a warning slip for smoking
on the floor. Hogg told him that he had denied that he had
been smoking . Hackman 's only reply was that George An-
thony said that he had been smoking and that Hogg would
have to sign the warning notice .63 Hogg told him he couldn't
very well sign a slip like that when Hpgg knew he wasn't
smoking . Katie DeChamplain testified truthfully that she
saw Hogg pick up a lighted cigarette from the floor, which
was carpeted. She did not know who had dropped it there.
It was under a chair and had burned "a little long hole" in
the rug . I find she indicated an area more than a quarter of
an inch in length as the size of the hole . She didn't observe
what Hogg did with the cigarette but she did not see him
smoke it. When Hackman spoke to Hogg, she told Hack-
man that Hogg had picked the cigarette up off the floor. I
find it to be a fact that Hogg, for a period of time, had a lit
cigarette in his hand and put it out.
I find it not unreasonable for George Anthony, some
distance away , having observed Hogg with a lit cigarette in
his hand , coming to a conclusion that Hogg was smoking,
because that is what a person usually does when he or she
has a lit cigarette in his or her hand. However, I find
George Anthony was at least mistaken, and I credit in full
Hogg's denial that he was smoking on that occasion. After
Hackman spoke to Hogg he left for a short time to talk to
George Anthony and then returned and gave Hogg a writ-
ten warning." Although George Anthony swore under
oath that Hogg was smoking on this occasion, I find that
while he was not necessarily deliberately lying, he, in good
faith, was at least , mistaken . He should have had some
doubts, in my opinion, in light of Hogg's and the girls' deni-
als and explanations. His affirmative swearing, in the cir-
cumstances , contributes largely to my lack of confidence in
his sworn testimony. Along with other testimony I do not
credit, he was not a credible witness.
Hogg set some sort of record on this occasion . This was
the first day that he returned to work and this was the first
time that anybody was ever given a written warning for
smoking and he was not smoking.
The consolidated complaint in this case was issued Octo-
ber 22. On October 28, Jack Swank got a warning notice
for smoking on the floor, which he signed. On November 4,
Jack Swank got a warning notice for smoking on the floor,
'which he signed 65 On November 12, Jack Swank got a
warning notice for smoking on the floor with a notice that
further disregard would mean a 3-day suspension, which he
signed.
It seems more than a mere coincidence that Swank re-
ceived three warning notices for smoking on the floor so
63 No investigation , other than having heard the girls' and Hogg 's denials
64 Again , no i6estigahon . Anthony , yes; Hogg and the girls, no.
651 assume he is the same person as Casey Swank. (Remember him in
connection with Flynn and "floating.")
901
shortly after the consolidated complaint in this case issued.
I find that Respondent violated Section 8(a)(1) of the Act
by issuing a written warning notice to Hogg for smoking
on the first day that he returned to the floor. Further mak-
ing it highly unlikely that Hogg would have smoked that
day is the fact that early that day Hackman told Hogg there
was a new rule prohibiting smoking on the floor by floormen.
I have noted that if, as was probably the fact, George An-
thony observed a cigarette in Hogg's hand, he may well
have come to the erroneous conclusion or surmise that
Hogg was smoking. However, such conclusion should have
been dissipated by the fact that 5 or 7 seconds after George
Anthony directed Hackman to speak to Hogg, Hackman
found that Hogg was not smoking and so reported to
George Anthony. He no doubt reported the corroborations
of other employees. In view of all the denials that Hogg
was smoking, I cannot find that George Anthony main-
tained a good-faith belief that Hogg was smoking, particu-
larly since I credit Hogg's testimony completely and find
he was not smoking.66 I find that by issuing a warning letter
to Hogg for smoking on the floor, Respondent violated
Section 8(a)(1) of the Act.
From the time Hogg was reinstated, until late August, he
averaged about $75 a week in tips for breaking cards.
Thereafter, on more than a few occasions, managers arbi-
trarily refused to permit him to break decks and it was not
unusual to have four or five decks broken at a time, when
Hogg had gone on a break, Hogg obviously not getting the
tips.
I find I cannot credit the hearsay testimony that players
at table 2, at which a high limit game was played, told
Hogg that they had been told by management not to tip
him for breaking decks. I find this to be hearsay testimony.
I do find that Respondent's records show that Hogg aver-
aged about four broken decks a day until early Septem-
ber.67 While it probably is unusual, there no doubt can be
times when the floorman is not tipped for breaking a deck.
According to General Counsel, Hogg broke an average of
perhaps one deck a day from September through Novem-
ber. According to General Counsel, Hackman's only expla-
nation for Hogg's failing to receive as many decks for
breaking after early August was the change in opening
hours. When the schedule of hours changed, Hogg's break
time in relation to his starting time, that is the length of
time from the time he started to work from the time he
took his first break, did not change nor did it change for
any of the other employees.
I have read the figures as given by Hackman with re-
spect to the amount of card breakages by Hogg during
September, October, and November, and I find that they
average about 20 per month. Of course, this does not mean
that he received tips for each of these breaks but these
figures are substantially less than the amount that-he aver-
aged until early September 1974. The figures given by
Hackman from Respondent's records show that between
August 5 and August 31, including any days he may have
66 Anthony impressed me as too intelligent to come to conclusions based
only upon appearances, particularly when there was so much evidence to
the contrary.
67 He presumably was usually tipped for the breaking.
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had off, he broke 66 decks.68 The comparison of this 66 for
August with the 60 for all of September, October, and No-
vember speaks for itself. Whatever may have been the facts
with respect to break times, etc., the floor managers very
easily could have so arranged Hogg's break schedule that
he would not be in the ridiculous position of working a
straight 4 hours, and then going off on a 1/2-hour break,
and then another break for 1-1/2 hours until 8 hours was
completed. To me, it appears ridiculous to have a man
work 4 hours straight through, without a break, and then
give him 1-1/2 hours breaktime during the next 4 hours of
work. Of course, the typical times for breaking cards at
section 1 was at the end of 4 hours, which was when Hogg
was assigned to go on his break, and this was well known
to Respondent. Respondent most easily and nondiscrimi-
natorily could have made arrangements for Hogg's break-
times, so that his availability for tips would have been more
or less consonant with what they were in August.69 Hack-
man testified that it was his job to set up the schedules. The
way he thought was "best for the business" and best in
terms of his employees' welfare, he testified, he wanted. He
always tried to deal with all of them equally and fairly. Obvi-
ously, this was not done during September, October, and
November for Hogg. I find that Respondent in September,
October, and November violated Section 8(a)(1) and (3) of
the Act by so operating its hours with respect to Hogg that
his income from tips as a section 1 floorman was drastical-
ly reduced and he suffered much financial loss. Such hap-
pened because he grieved pursuant to the contract, and
because he engaged in protected concerted activities under
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of Re-
spondent described in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
NLRB 716 (1962), and reinstate him to his former or sub-
stantially equivalent position.
Having found that on various occasions, Respondent
discriminated against Melvin S. Hogg and Richard J.
Flynn, in connection with work assignments because of
their union and other protected concerted activities, I shall
recommend that Respondent make them whole for any
loss of wages or pay they may have suffered by reasons of
Respondent's particular forms of discrimination against
them, in violation of Section 8(a)(3) and (1) of the Act, in
the manner set forth in F. W. Woolworth Company, supra,
with interest computed in the manner described in Isis
Plumbing & Heating Co., supra.
It shall also be ordered that Respondent cease and desist
from violating the Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. The Union is a labor organization within the meaning
of the Act.
3. By discharging Flynn and thereafter failing and refus-
ing to reinstate him because of his union and other protect-
ed concerted activities, Respondent has violated Section
8(a)(3) and (1) of the Act.
4. By restraining, threatening, and coercing, and causing
monetary losses to, Flynn and Hogg because of their exer-
cise of their union and other protected concerted activities,
Respondent violated Section 8(a)(1) and (3) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of the Act.
Upon the entire record, including the foregoing findings
of fact, and conclusions of law, I hereby issue the follow-
ing:
ORDER70
V. THE REMEDY
Having found Respondent has engaged in certain unfair
labor practices, it will be recommended that it cease and
desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Having found that in late July, Respondent terminated
Richard J. Flynn and has thereafter failed and refused to
reinstate him, because of his union and other protected
concerted activities, I shall recommend that Respondent
make him whole for any loss of wages or pay he may have
suffered by reason of Respondent's discrimination against
him, in violation of Section 8(a)(3) and (1) of the Act, in
the manner set forth in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest on backpay computed in
the manner described in Isis Plumbing & Heating Co., 138
u Tips?
69 Failure so to do was a financial detriment to him.
Respondent, The Anthony Company, d/b/a El Dorado
Club, Gardena, California, its officers , agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discriminating against any of its employees because
of their support for or assistance to any union or because
they engaged in any concerted activities protected by the
Act.
(b) In any other manner interfering with, restraining, or
coercing any employee in his right to join , assist, or support
the Union herein, or any other labor organization, or en-
gage in any activities protected by the Act, or to refrain
from so doing.
2. Take the following affirmative action which I find
70 In the event no exceptions are filed as provided by Sec. 102 .46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
EL DORADO CLUB 903
will effectuate the policies of the Act:
(a) Make Flynn and Hogg whole for any loss of earn-
ings either one may have suffered by reason of
Respondent 's unlawful discriminations against them in the
manner set forth in the "Remedy" section of this Decision,
and reinstate Flynn to his former or substantially equiva-
lent position , should his former position not be available.
(b) Preserve and, upon request, make available to the
Board or any of its agents, all records necessary or useful
to the Board to determine or compute the amounts of mon-
ey due to Flynn or Hogg because of Respondent's unlawful
discrimination against them.
(c) Reinstate Flynn to his former or substantially equiv-
alent position with all his prior existing rights and privi-
leges including seniority.
(d) Post at its Gardena , California, facility, copies of the
notice attached hereto and marked "Appendix.."7' Copies
of said notice, on forms to be furnished by the Regional
Director for Region 31 which, after being duly signed by
George Anthony, Respondent's executive officer (presi-
dent), shall be posted immediately upon receipt thereof,
and be maintained by it for a period of 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to ensure that
such notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 31, in writ-
ing, within 20 days from the date of this Order what steps
Respondent has taken to comply herewith.
71 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."